Foley v. Harrison 56 U.S. 433 (1853)

U.S. Supreme Court

Foley v. Harrison, 56 U.S. 15 How. 433 433 (1853)

In 1841, Congress passed an Act, 5 Stat. 455, declaring that there shall be granted to each state &c., Louisiana being one, five hundred thousand acres of land.

This act did not convey the fee to any lands whatever, but left the land system of the United States in full operation as to regulation of titles so as to prevent conflicting entries.

Hence, where a plaintiff claimed under a patent from the State of Louisiana, and entries only in the United States office, and the defendant claimed under patents from the United States, the title of the latter is the better in a petitory action.

The defendant has also the superior equity, because his entries were prior in time to those of the plaintiff, and the decision of a board, consisting of the Secretary of the Treasury, the Attorney General, and the Commissioner of the Land Office, to whom the matter had been referred by an act of Congress was in favor of the defendant.

This was a petitory action commenced by Foley in the Fifth District Court of New Orleans, claiming lots No. 1 and 2 of section No. 3, the west half of section No. 10, and the northwest quarter of section No. 15, in township eleven, range thirteen east, containing in all 855 acres and nine hundredths.

By the Act of 4 September, 1841, section 8, 5 Stat. 455, Congress granted to several of the states, of which Louisiana was one, five hundred thousand acres of land each for purposes of internal improvement,

"the selections in all of said states to be made within their limits respectively in such a manner as the legislatures thereof shall direct, and located in parcels conformably to sectional divisions and subdivisions of not less than three hundred and twenty acres in any one location on any public land except such as is or may be reserved from sale by any law of Congress or proclamation of the President of the United States, which said locations may be made at any time after the lands of the United States, in said states respectively, shall have been surveyed according to existing laws."

In 1844, the Legislature of Louisiana, in pursuance of the power with which it was invested by the above-cited act of Congress of directing the manner in which the selections of land thus granted should be made, passed an act establishing an office for the sale of the unlocated lands granted to the state, with a register, and the state treasurer as the receiver thereof. Session acts of 1844, p. 61.

By the 7th section of that act, it was made the duty of the register and treasurer

"to issue warrants for the lands donated by Congress and not as yet located, provided they shall not be issued for less than eighty nor more than six hundred and forty acres, which warrants shall be sold in the same manner as the lands located, provided they shall not be sold for less than three dollars per acre, and it shall be the duty of the governor to issue patents for all the lands that have been sold, and for the lands located by warrants, when contemplated to be sold by that act, whenever he shall be satisfied that the same have been properly located."

Under the provisions of the above-recited act of Congress granting the land, and the above provisions of the state legislature directing the manner in which the selections should be made, Foley purchased two warrants from the state officers, and on the 7th January, 1846, located them in the Land Office of the United States at New Orleans, upon the lands now in controversy.

The defendants claimed title under five patents, issued from the General Land Office on the 1st September, 1847. These patents purported to be issued under an Act of Congress of August 3, 1846, and were founded on certain floats, which were claimed under the second section of the preemption act of 1830, 4 Stat. 421, which was revived for two years by the Act of 19th June, 1834, 4 Stat. 678

In order to show more clearly the respective titles of the plaintiff and defendants, the reporter has arranged them in chronological order.

The district court decided that Foley should recover the lot No. 1, of section 3, township eleven, range 13 east, containing 211 99/100 acres, and that the plea of prescription pleaded by defendant be sustained as to lot No. 2, of section 3, township eleven, range 13 east, and the west half of section 10 of the same township and range.

The Supreme Court of Louisiana reversed this decree and ordered judgment for the defendant for the land in controversy.

Foley sued out a writ of error under the 25th section of the Judiciary Act, and brought the case up to this Court.

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